Prosecution Details

Being an employer, failed, so far as practicable, to provide and maintain a working environment in which employees of the employer were not exposed to hazards, and by that failure caused serious harm to an employee; contrary to sections 19(1) and 19A(2) of the Occupational Safety and Health Act 1984

On 30 December 2018, the victim, a drug detection officer employed by the Offender, suffered serious injuries as a result of being bitten by a German Shepherd multi-purpose dog while at work.

Background

The Offender is a State Government Department. Corrective Services is a division of the Offender and is responsible for Hakea Prison, a maximum security adult male prison.

The Offender’s annual report from 2019/2020 provides that Corrective Services employs approximately 4,890 staff and has an operating budget of $1.029 billion.

The Drug Detection Unit (DDU) is a division of Corrective Services based within the Hakea Prison complex. The Offender employs a number of employees called Drug Detection Officers (DDOs) to handle drug detection dogs in the DDU.  The DDU uses drug detection dogs to detect and prevent drugs and other contraband coming into prisons and detention centres throughout Western Australia (WA).

The DDU contains demountable offices and a kennel complex which consists of multiple kennels and segregated caged outdoor areas (often referred to as ‘day runs’) for drug detection dogs. 

The drug detection dogs are trained to sniff out drugs and other contraband including mobile telephones.  The work of a DDO includes conducting searches of individuals and environments at various prisons using a drug detection dog and the provision of care and welfare to the drug detection dogs.

Drug detection dogs are generally assigned to a DDO and are generally home kennelled with that DDO. When a DDO goes on leave, a DDO can either leave their drug detection dog at the kennels at the DDU or take the drug detection dog home.  Regular work tasks of a DDO include taking the drug detection dogs out of the kennels in the morning for exercise in the day yards, cleaning the kennels and feeding the drug detection dogs.

At the time of the incident, the kennel doors at the DDU opened outwards. The normal procedure for removing a drug detection dog from a kennel was to place a foot against the outside of the kennel door as the door opened outwards. The kennel door is only opened enough to put the choker chain on the drug detection dog.

Types of dogs

The drug detection dogs used at the DDU are Labrador Retrievers and are also referred to as a ‘passive alert detector dog’ (PAD dog). The DDU’s PAD dogs are bred and given early training by the Australian Border Force’s detector dog program in Melbourne, Victoria.

PAD dogs require affection and attention and are trained to approach detecting narcotic odour as a game. The PAD dogs are given a pat, praise and rewards such as playing with a towel when they detect narcotic odour. A PAD dog is not trained for tactical situations.

General purpose dogs (GP dogs) and multi-purpose dogs are very different to PAD dogs. GP dogs can be cross trained to detect narcotic odour and these cross trained dogs are referred to as ‘multi-purpose dogs’ (MP dogs). They are generally German Shepherd or Belgian Malinois breeds of dog. GP dogs can be highly aggressive and are territorial. GP dogs are used by law enforcement agencies such as the military, police services and corrections to respond to high risk or critical incidents involving aggressive offenders, riot control, high security escorts and human tracking.  When performing these roles GP dogs may bark, bite or charge and push the subject. GP dogs are trained to have a high level of obedience under firm instruction from their handler.

The Offender recognised that MP dogs have a different temperament and nature to PAD dogs. Notably, the Offender’s documents “General Purpose Dog Capability in Corrective Services 2018” and the “Decision Brief” provided that an MP dog is not suitable for searching people. These documents provide that MP dogs would only be used for detecting narcotic substances in areas and objects and not people.

Training of DDOs

When a DDO commences work with the Offender, they are given training specific to drug detection work with a PAD dog. A DDO undertakes a course, which is generally of 10 weeks duration, in relation to how to handle PAD dogs.

The Multipurpose Dog Project

Following a riot at the Greenough Regional Prison in July 2018, the then Commissioner of Corrective Services requested a review be completed in relation to developing an MP dog capability within Corrective Services.

Lead up to MP Dogs being acquired

In September 2018, the Assistant Director, Drug Mitigation, DDU (Assistant Director DDU) asked a DDO (DDO1) to assist in developing an MP dog capability. The DDO1 was told by the Assistant Director DDU to write a desktop review of the MP dog capability.  DDO1 was initially told by the Assistant Director DDU that he would be in charge of the MP dog capability and if it was approved he would be the Subject Matter Expert (SME).

A document entitled “The General Purpose Dog Capability in Corrective Services 2018” (GP Dog Capability Document) was created and provides that the author was the Assistant Director DDU. On the cover next to ‘document status’ it is listed as ‘draft’, the date provided is 29 October 2018 and it provides it was 'approved by Acting Director Security and Response Services (Acting Director SRS) on 1 November 2018.

The 'approval' by Acting Director SRS was for the use of the GP Dog Capability Document as a draft to inform briefings and discussions on the MP dog capability. The Document never became a formal position statement by Corrective Services.

Amongst other things, the GP Dog Capability Document provides that:

1. the DDU exclusively use PAD dogs;
2. the ‘friendly disposition [of PAD Dogs] makes them suitable for searching people especially members of the public and children’;
3. MP dogs are not suitable for visitor searching; and
4. “Corrective Services does not possess operational experience in GP/MP dogs or development of this capability. This will result in the need to recruit a position to develop, train and manage this capability or to engage an external service provider to source and train dogs, which carries with it a large cost.”

The GP Dog Capability Document outlined that the proposed capability of MP dogs within Corrective Services would be broad, and would include the use of force in circumstances such as riot control and cell extractions.

The GP Dog Capability Document provided two options for developing an MP capability within Corrective Services. Option one was that Corrective Services develop its own capability and option two was for Corrective Services to develop a joint capability with the WA Police. The GP Dog Capability Document provided that option 1 (for Corrective Services to develop an MP dog capability) would take at least 2 years and this option was chosen by the Offender.

The GP Dog Capability Document was presented by the Acting Director SRS in draft for the purpose of informing discussions at about the end of October 2018. At around this time the Assistant Director DDU told he wanted the whole capability implemented by May 2019.

Following discussions, on 22 November 2018, the Acting Director SRS provided guidance on the Commissioner’s intent. This reinforced the active introduction of a GP dog capability, with Greenough the priority by the end of Q1 2019. The Commissioner was receptive to a partnering arrangement with WA Police.

Warnings by Subject Matter Expert

In an email dated 26 November 2018 from DDO1 to the Assistant Director DDU

he outlines a large number of significant safety concerns and issues associated with acquiring GP/MP dogs including the following:

“I believe the current plan we have is going to set us up for failure and we need to readdress realistic expectations and constraints.

… currently we do not have the kennels set up to house a General Purpose (GP) Dog safely. Going hand in hand with that, we have no procedures, polices [sic] in place for a GP dog at this time, we also have no equipment for these dogs, so if an incident did occur before we get any of this in place then we open ourselves up to potentially handlers getting hurt, dogs getting hurt. We are going to be under so much scrutiny that we must be proactive in minimising and mitigating all potential safety issues that could arise.

…we simply cannot take a GP dog that has the potential to be dangerous to other when we are not set up correctly…would SOG buy guns without an armoury to secure them? No this would not occur and this logic must be applied to this, we are simply jumping the gun and we have no room for error.

There is no-one in this Dept. apart from myself that has the knowledge and experience in this field, therefore I feel I should be involved in the conversations with the decision makers to provide them the most accurate information and set realistic expectations.

…

From the beginning I said that it will not work to have 1 handler run 2 x dogs, especially in the early stages of the capability.

…

…I said that only, DDO2 and DDO3, workers from the DDO are suitable [for the GP capability]. The Co-ordinator Training and Drug Control, DDU agreed with me that he doesn’t believe anyone else in DDU is suitable for it either.

…

As the SME I should have a very large say in who becomes a handler, especially for the initial dogs, I have the experience and knowledge backing me to make those decisions, no one else in the Dept. possesses this. DDU handlers are selected for [a] specific job role, rarely are there people that can be both detection dog handlers and GP dog handlers, they are very different attributes and character traits.”

It is unclear whether or to what extent these comments were communicated on to the Acting Director SRS or those above him.

The DDU obtained quotes to modify the kennels but did not proceed with the modifications prior to the MP dogs arriving.

No risk assessment was done for the 2018 MP dog capability and the MP dogs which were acquired by the Offender were not assessed in person.

DDO1 spoke with the Co-ordinator Training and Drug Control, DDU about the lack of risk assessment and was told that a risk assessment was not needed.

Decision Brief

On 12 December 2018, formal approval was given by the then Commissioner for Corrective Services to “develop a Multipurpose Dog capability within Corrective Services” via signing a memorandum entitled ‘Decision Brief’ (Decision Brief).  The Decision Brief was drafted by Assistant Director DDU on 4 December 2018, ‘cleared by Acting Director SRS ‘endorsed’ by Acting ACCO Adult Justice Services on 7 December and ‘supported’ by Acting Deputy Commissioner ROS on 10 December 2018.

In the Decision Brief, it provided that “MP Dogs will be trained for a security / emergency and tactical support function and be trained to detect narcotic odour”. The Decision Brief outlined that the security function of the MP dogs would involve a use of force capability, and training would be conducted in riot control and other specialist capabilities such as cell extractions and escape/perimeter compromise.

In the Decision Brief, it was agreed that two MP dogs be obtained and then subsequently the MP Dog capability would be developed. Large amounts of work and preparation was outstanding, including modifications to kennels, training, developing a standard operating procedure, designing an MP dog training program and developing training support materials. Particularly, it was noted under the heading “Facilities and equipment” in the Decision Brief that:

"Two kennels and yards at the DDU Kennel Complex will be modified for MP dogs".

Selection of the MP Dogs

It is a standard practice for either one or two employees from the DDU to travel to Victoria to assess a PAD dog in person at Australia Border Force to determine whether a dog is suitable prior to being acquired by the DDO.

A video of one of the MP dogs acquired by the Offender was reviewed by DDO1 and Assistant Director DDU. However, the Offender did not arrange for the dogs to be assessed in person by a representative of the Offender.

The Offender purchased two partially trained MP dogs from a private seller from another company. The two MP dogs were bought for $10,000 each on the agreement that if the dogs were deemed unsuitable they could be returned for a refund.

DDU procedures

On 12 December 2018 the Acting Coordinator of Operations at the DDU sent an email to the DDOs with the subject line ‘Multi-Purpose Detector Dog Kennel Procedure’ attaching a document entitled “Multipurpose Canine Standard Operating Procedures - MP Kennel Procedures” (MP Kennel Procedures). Amongst other things, the MP Kennel Procedures provided that:

1. “Only DDO’s (MP) or DDO’s that have been trained and signed off are permitted to handle the MP dogs.”
2. “Kennel’s [sic] numbered 1 and 2 are designated kennels for the MP dogs, any changes to this must be approved by the Coordinator DDU.”
3. “The MP dog is to be given the command ‘on your bed’ by the DDO (MP) from the outside of the kennel. The dog is required to go onto its bed and ‘sit’ and ‘stay’.”

There was no additional training of DDOs in relation to MP/GP dogs undertaken prior to the MP Dogs arriving. The training of DDOs in relation to MP/GP dogs was due to start in January 2019.

The following documents were not complete prior to the arrival of the MP Dogs:

1. Multipurpose Canine Standard Operating Procedures - Canine Operations Manual; and
2. Multipurpose Dog Training Manual.

The Offender’s occupational safety and health division and the DDU’s occupational safety and health representatives were not consulted in relation to the MP Dog Capability.

Collecting the MP dogs from the Airport

DDO1 asked if there could be a second person assisting him when picking the MP dogs up from the airport. He was told by the Acting Coordinator Operations of the DDU at the time that another person was not permitted to accompany him as it was after hours and they would have to be paid overtime.

Airport incident

On Thursday 20 December 2018 DDO1 went to the Perth Airport to collect the new MP dogs. One MP dog was a German Shepherd called Flint, and the other was a Belgium Malinois called King (the MP dogs).  The MP Dogs were barking a lot when they arrived at Perth Airport.  While handling and transferring the MP Dogs at the Perth Airport, the German Shepherd (Flint) tried to bite DDO1 twice.

The day after collecting the MP dogs, DDO1 visited his doctor and went on sick leave for two weeks. There were no other DDOs recently trained or experienced in working with MP dogs at the DDU.

21 December to 30 December 2018

On 21 December 2018 an email was sent to the DDOs saying that only the victim and DDO3 were allowed to handle the MP dogs.  The Victim is employed by the Offender as a DDO.  The victim commenced employment with the Offender as a prison officer in 1990 and remained in this position until about 1996 when he transferred to the Canine Section (which is now known as the DDU).

The victim worked with German Shepherd GP dogs for a period of about two and a half years from 1996 – 1998 when the Canine Section had GP dogs. The victim undertook a GP dog training course. The trainer was brought in from the eastern states. The procedure in place at that time was to only handle your own assigned dog.

The victim was not given any updated training to work with GP or MP dogs prior to handling the MP dogs in 2018.

DDO3 has worked as a DDO at the DDU since 2003. Previously he had three years of experience as a dog handler for explosive detection dogs while working for the military. He had previously had only limited experienced with trained GP or MP dogs. When he was in the military he had worn a bite sleeve to assist with the training of attack dogs.  He told the Acting Coordinator Operations of the DDU at the time that two people are needed at all times to handle the MP dogs in case a dog decided to turn on the handler.  He went on leave a few days after the MP dogs arrived at the DDU which left only the victim to look after the MP dogs from about Christmas day onwards.

There were only Labrador chokers available for use in the workplace as specific chokers for MP dogs had not arrived.

The Acting Coordinator Operations DDU told the victim to arrange for basic exercise and socialisation of the MP dogs to get them used to other dogs and people.

The behaviour of the MP Dogs

Around a few days after the MP dogs arrived, Flint escaped the outside caged area in the yard. The victim was walking King on the outside path and Flint and King started fighting. The victim got Flint in a choke hold which caused him to back away.

The victim was concerned about the demeanour of the dogs, for example he saw the MP dogs pacing in the cages outside. He reported his concerns to the two coordinators of the DDU.

The victim tried to use the command ‘on your bed’ with the MP dogs a few times however the MP Dogs just sat there and did not follow the command to get on their bed.

Various DDOs observed that the MP dogs seemed agitated and aggressive.

The incident

On 30 December 2018, the victim arrived at work at the DDU at about 7:00am.  The MP dog Flint was in kennel number 4.

The victim’s work task was to remove both of the MP dogs from the kennel in the morning and put them out into the day runs. This task is a standard procedure and routine work performed by DDOs.

The victim followed the DDU procedure for opening the kennel door and putting the choker collar on the MP dog Flint. He slid open the sliding bolt lock, then partially opened the kennel door outwards about 15 cm, which was enough for the head of the dog to come through. The victim had his foot against the bottom of the door and had the choker ready and was leaning over so the MP dog Flint could put his head through the open door and into the choker.

Then Flint suddenly latched onto the victim’s right forearm with his mouth. Flint then dragged the victim into the kennel and was standing on his back legs and his head was about the same height as victim’s head. The victim yelled at the dog approximately 10 to 15 times ‘no, no, no’. Then Flint latched on to the victim’s left wrist.

The victim managed to get out of the kennel and locked the door.

Another DDO (DDO4), then came to assist the victim and saw that he was bleeding from both his arms. DDO4 went to the first aid kit for something to put on the victim’s arms but there was only pieces of cotton wool in the first aid kit or sticky bandages and nothing suitable for deep cuts.

The victim wrapped both his arms in two towels used for the dogs and DDO4 drove him to Murdoch Hospital.

Injuries

As a result of the dog attack, the victim suffered serious harm. He was admitted to the emergency department at St John of God Hospital Murdoch and then transferred to Joondalup Health Campus.  He sustained a fractured left distal radius and lacerations to his right forearm and left wrist, requiring over 120 stitches in his arms. The fracture required specialised treatment from an orthopaedic surgeon. He initially had surgery to debride and internally fix the fracture which involved putting screws and wires in his left wrist.

The injuries to the victim’s left hand, wrist and forearm were complex, and he experienced pain, impairment of strength and motion, some loss of manual dexterity and tendon and nerve damage. He subsequently had revision surgery and has had a total of four surgical operations.

A consultant psychiatrist diagnosed the victim with post-traumatic stress disorder as a result of the dog attack.

Subsequent treatment received by the victim has included hand therapy, splinting, medication for his mental health condition and psychological therapy.

Systems Prior to the Incident Kennel modification

On 28 November 2018, the coordinator of the DDU sought a quote from a contractor to modify two kennel gates. In an email to the “Principal Project Officer – Maintenance” also dated 28 November 2018 the following is stated:

“The Department is about to trial dogs with a bite capability and they have different requirements to our drug detection dogs. There is some urgency to this request please.”

A quote was obtained which is dated 30 November 2018. In that quote, the estimated cost to “re-hang the two kennel gates two [sic] swing into the kennel as per site meeting” came to $1,250.

The kennels doors had not been modified to only swing inwards prior to the two MP dogs arriving.

Having a kennel door for an MP dog that only opens inwards is safer for the dog handler as it is quicker to close if the dog was to charge at, or try to attack, the handler. In addition, having kennel doors that only open inwards is safer for the dog handler as if a door hinges outwards the force of an MP dog jumping on the door can overpower the handler and the dog can push through the kennel door.

Lack of risk assessment

Prior to this incident, the Offender did not carry out a risk assessment to identify the risks created by the MP dog capability prior to the MP dogs arriving.

In the Offender’s document entitled “OSH Risk Management Procedure” from November 2009 and updated in November 2012, it provides that:

“Safety risk management is to be undertaken:

• in the planning stages of new business
• where a significant change in business occurs
• where hazards are identified”

 The Offender has a template document called a ‘safety risk register’. The DDU had not completed a safety risk register since 2014-2015.

Systems at a comparable workplace

At the WA Police Canine Unit, three dog kennels were fitted with a lever mechanism in approximately 1994. This lever can be operated on the outside of the kennel to open a door to release a dog to a day run area and clean the kennel without coming into contact with a dog (non-contact kennels). On the remaining kennels at WA police, there is a pull down pulley system which makes the remaining kennels non-contact kennels. When additional kennels were built in 2014 the pulley system was used.

The kennel doors at the WA Police Canine Unit were made to only open inwards in approximately the beginning of 2018 to enhance safety and to reduce the risk of injury to a person completing kennelling duties and when attending to the needs of dogs.

The WA Police use an external specialist contractor to train and supply dogs to its Canine Program.

Post incident

On 31 December 2018 the Acting Director, Security and Response for Corrective Services at the time wrote an email to Corrective Services Commissioner about the dog attack incident and the following was stated:

“In a nutshell, both dogs are assessed as unsuitable – this is evident in the number of incidents and their demonstrated unpredictable and uncontrolled aggression. It is recommended that both dogs be sent back to the supplier.”  The MP dog Flint was put down on or about 8 January 2019. The other MP dog King was sent back to the supplier.

Measures taken since the incident

After the incident, a further review of the MP dog capability was undertaken and preparations were made for the Offender to acquire MP dogs again.

After the incident and prior to any further MP dogs arriving, the Offender implemented the following measures:

1. A risk log was created.
2. Kennels were modified to be ‘non-contact’. This involved installation of a cable that can be operated from outside the kennel. As a result, a DDO can pull a cable from outside the kennel which opens an internal door to allow a dog to go out to the enclosed outside yard and the door can then be shut. This leaves the kennel empty and a DDO can enter the kennel and clean the kennel and put food there.
3. Kennel doors were modified to swing inwards.
4. Some new yards were built.
5. Cameras and a duress alarm for DDOs were installed, meaning that there is an emergency button that a DDO can push to gain assistance in the event of an injury or attack.
6. The Offender went out to tender for an external provider to build the MP dog capability for Corrective Services.
7. The first aid kits were improved.

On 22 September 2020, WorkSafe was informed by the Acting Deputy Commissioner Operational Support for Corrective Services at the time that there was no current MP dog program as he suspended the program due to concerns that the project did not mitigate the risks involved.

This is the offender’s third Occupational Safety and Health Act 1984 conviction. The offender plead guilty and was convicted on 23 March 2022.  The Magistrate fined the Offender $900,000.00 after a reduction for an early plea of guilty.